Bristol University Press
6 US Laws Relating to Decision-Making on Behalf of P
Abstract
Guardianship and conservatorship are matters for state law in the US, so there are multiple legal approaches to the problem of establishing and instantiating the values of P in proceedings regarding P’s healthcare and the disposition of P’s property. Many states suffer confusion as between best-interest and substituted judgement standards in making decisions on behalf of persons who have lost capacity, and almost none actually require consultation with P about P’s values after a guardian or conservator has been appointed. Even in states that are clear on the legal standards to be applied in probate proceedings, there is little judicial review or oversight, and widespread neglect and fraud. Several reform movements have improved the situation in recent years; and private accrediting bodies for guardians/conservators have established more clear standards in the field. Importantly, there has also been a recent movement among a number of states to use ‘supported decision-making’ techniques to help ensure that the values of persons who have partially lost capacity are explored and applied to important decisions about their healthcare and the disposition of their property.
Abstract
Guardianship and conservatorship are matters for state law in the US, so there are multiple legal approaches to the problem of establishing and instantiating the values of P in proceedings regarding P’s healthcare and the disposition of P’s property. Many states suffer confusion as between best-interest and substituted judgement standards in making decisions on behalf of persons who have lost capacity, and almost none actually require consultation with P about P’s values after a guardian or conservator has been appointed. Even in states that are clear on the legal standards to be applied in probate proceedings, there is little judicial review or oversight, and widespread neglect and fraud. Several reform movements have improved the situation in recent years; and private accrediting bodies for guardians/conservators have established more clear standards in the field. Importantly, there has also been a recent movement among a number of states to use ‘supported decision-making’ techniques to help ensure that the values of persons who have partially lost capacity are explored and applied to important decisions about their healthcare and the disposition of their property.
Chapters in this book
- Front Matter i
- Contents iii
- List of Tables and Boxes v
- Notes on Contributors vi
- Acknowledgements xi
- Introduction: Values, Participation and Mental Capacity Laws in International Comparative Perspective 1
- Mental Capacity Law in England and Wales: A Value-Laden Jurisdiction 9
- Mental Capacity Regimes Approach to Values and Participation in Proceedings Involving Individuals with Impaired Decision-Making Capacity in Scotland 27
- The Fusion Approach to Mental Capacity Law in Northern Ireland: Possibilities and Challenges 46
- Judging Values in a Time of Transition: An Irish Perspective 65
- US Laws Relating to Decision-Making on Behalf of P 85
- Indigenous Peoples with Disabilities and Canadian Mental Capacity Law 100
- Capacity, Participation and Values in Australian Guardianship Laws 120
- Navigating Values in Aotearoa New Zealand 143
- Values and Participation of Individuals Without Mental Capacity in Hong Kong 162
- Asian Values and Confucianism: How P’s Ability to Participate in Court Proceedings in Singapore Is Influenced by P’s Cultural Milieu 182
- Respect for the Will and Preferences of People with Mental Disorders in German Law 203
- The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions 226
- Index 251
Chapters in this book
- Front Matter i
- Contents iii
- List of Tables and Boxes v
- Notes on Contributors vi
- Acknowledgements xi
- Introduction: Values, Participation and Mental Capacity Laws in International Comparative Perspective 1
- Mental Capacity Law in England and Wales: A Value-Laden Jurisdiction 9
- Mental Capacity Regimes Approach to Values and Participation in Proceedings Involving Individuals with Impaired Decision-Making Capacity in Scotland 27
- The Fusion Approach to Mental Capacity Law in Northern Ireland: Possibilities and Challenges 46
- Judging Values in a Time of Transition: An Irish Perspective 65
- US Laws Relating to Decision-Making on Behalf of P 85
- Indigenous Peoples with Disabilities and Canadian Mental Capacity Law 100
- Capacity, Participation and Values in Australian Guardianship Laws 120
- Navigating Values in Aotearoa New Zealand 143
- Values and Participation of Individuals Without Mental Capacity in Hong Kong 162
- Asian Values and Confucianism: How P’s Ability to Participate in Court Proceedings in Singapore Is Influenced by P’s Cultural Milieu 182
- Respect for the Will and Preferences of People with Mental Disorders in German Law 203
- The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions 226
- Index 251
